22/08/2015
Despite of JAIN historical and religious significance, Santhara has of late come to face opposition by activists who demand its abolishment citing abuse and coercion. As someone responsible for the petition in the Rajasthan High Court, human rights activist and Jaipur based lawyer Nikhil Soni, should know. A native of Churu district in Rajasthan – with the reputation of the world’s Santhara capital for its highest per capita incidence of the practice in recent history - Soni says for years he quietly watched many such fasts-unto-death.
That was till September 2006 when Soni heard that one, Bimla Devi was being coerced into Santhara by her family. “Diagnosed with terminal cancer, the elderly Bimla Devi was too weak and depressed to protest as her relatives went about publicly announcing ‘her decision’ to undertake Santhara. And, in her final hours, when Bimla Devi began screaming in a last-ditch effort to get food and water, her cries were drowned out by loud bhajans sung to the accompaniment of high-decibel percussion.”
He remembers being shaken to the core. “Bimla Devi’s case convinced me that Santhara is, su***de masquerading as a religious practice wrapped in the mantle of hoary tradition. At its worst, Santhara came across as nothing but ritual murder, devised to rid a family of the economic burden of caring for its elderly who were seen as burden on the family budget.”
As he unsuccessfully tried to get the police to save Bimla Devi, he resolved to scale up his fight to save others from what he calls “being sacrificed” in the name of Santhara. “I filed a writ petition against the practice in the Rajasthan High Court calling it ‘a social evil’ that should be deemed an act of “su***de” — and therefore illegal — under Indian law. My petition demands that practitioners of Santhara be prosecuted under Section 309 of the Indian Penal Code for ‘attempt to commit su***de’ and their supporters — who encourage it by venerating them as ‘spiritually elevated’ beings — charged with abetting this crime.”
Community Support
Community insiders place the conservative estimate to about 200 Santharas every year in India, which the 2001 census says has 4.3 million Jains. Although many insist though the Jains in India are actually between 6-8 million, many end up being counted as Hindus due to ignorance or supremacist homogenisation.
These numbers indicate how Soni’s petition has pitted him against the might of one of the wealthiest communities in India with sharp battle lines as both camps are unwilling to budge even an inch in their argument. “While Soni’s petition invokes Right to Life under Article 21 of the Constitution of India, the Santhara advocates, interestingly use the same Article to argue their side,” smiles Hattangadi. “The Right to Life, they argue, is meaningless without the corresponding right to stop living or the right to die. The same Article, they underline, also grants a person the right to personal liberty in such matters.”
Many like Jain studies scholar Manish Modi actually think that the hullaballoo over Santhara has more to do with larger right-wing Hindu plan to homogenise all minorities. "They have done this to all minorities and are trying the same with the Jain community too. The huge majority which swept in the current dispensation to power in the general elections last year has only emoboldened them."
Stances like these have been bolstered considerably by the active support of retired High Court judge Pana Chand Jain who not only seeks the protection of at least three other constitutional provisions, but also the endorsement of an international covenant. In his interview in the documentary he dwells on Articles 25 and 26 of the Constitution which allow followers of all faiths to freely profess, practise and propagate their religious faith; and the freedom to manage their religious affairs. “Mindful of the country’s ethnic and cultural diversity, Article 29 guarantees citizens with a distinct culture, the right to conserve the same,” he points out and adds, “Article 18 of the Universal Declaration of Human Rights — of which India is a signatory - says: “Everyone has the right to freedom of thought, conscience and religion; [and the right] to manifest his religion or belief in teaching, practice, worship and observance.”
Judiciary thinks otherwise
As if this weren’t complicated enough, the judiciary thinks very differently on this issue. While Santhara followers evoke the Constitution and international covenant, Soni has the weight of judicial opinion firmly on his side of the right-to-die debate {Maruti Shripati Dubal v State of Maharashtra (1986) and P.Rathinam v Union of India (1994)} which respectively held that “if destruction of one’s property or its deliverance to others for a cause or no cause is not an offence, there is no reason why sacrifice of one’s body for a cause or without a cause or for the mere deliverance of it should be regarded as an offence” and that Sec 309 of IPC was “unconstitutional and hence void.” This ruling by a five-judge bench of the Supreme Court ruled in Smt Gian Kaur v State of Punjab (1996) that “the right-to-life is a natural right embodied in Article 21, but su***de is an unnatural termination or extinction of life and therefore incompatible and inconsistent with the concept of right-to-life.” Emphasizing the sanctity of human life, the Court, in over-ruling both Dubal and Rathinam, was categorical that “by no stretch of imagination,” can “extinction” of life be read to be included in “protection” of life.
All eyes are now on the Rajasthan High Court. Will it accept the Supreme Court’s precedent in Gian Kaur and outlaw Santhara? Will such a decision ‘hurt’ religious sensitivities of nearly 6 million practising Jains worldwide, for whom the centuries-old ritual holds a pride of place among their sacred traditions? Justice Jain seems to have already anticipated this eventuality. He argues, “Santhara can’t be called “su***de” by no stretch of imagination. It is no where remotely an act of extreme desperation fuelled by anguish.”
